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Drakes Bay oyster farm files new appeal of shutdown order

The owner of Drakes Bay Oyster Company asked a federal appeals court Friday to reconsider his bid to continue harvesting shellfish in the Point Reyes National Seashore.

Lawyers for Kevin Lunny filed a 22-page request with the 9th Circuit U.S. Court of Appeals, a move that could potentially delay a court-ordered shutdown for up to a year.

Federal judges twice have rejected Lunny's bids since last November, when former Interior Secretary Ken Salazar refused to renew his permit to grow oysters in the federally protected waters of Drakes Estero, a 2,500-acre Pacific Ocean estuary teeming with wildlife.

By appealing both decisions, Lunny has gained the right to continue his business, which employs about 30 people and harvests $1.5 million worth of oysters a year from the estero.

In September, a panel of three 9th Circuit judges rejected his latest bid on a 2-1 ruling, giving Lunny a 45-day window for requesting a rehearing before a panel of 11 judges.

The decision noted that Lunny, who bought the oyster farm in 2005, was "not likely to succeed" in his underlying claim that Salazar's action was "arbitrary and capricious and an abuse of discretion."

A rehearing is needed, Lunny's lawyers asserted Friday, because the September ruling "conflicts with several decisions of the United States Supreme Court, and of this Court, on questions of exceptional importance."

The filing also contends that the National Park Service "sustained a vendetta against the oyster farm," citing allegations of scientific misconduct in an assessment of the oyster farm's environmental impact.

The farm's supporters, including the Sonoma County Farm Bureau, have called it a model of sustainable agriculture. Republican lawmakers and conservative groups have also weighed in on Lunny's side.

Wilderness advocates say the estero belongs to the public and commercial activity should be removed.


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